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TC Minutes 04-13-19990 MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL HELD APRIL 13, 1999 A regular meeting of the Town of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado in the Council Chambers. The meeting was called to order by Mayor Judy Yoder at 5:30 PM. A roll call was taken with Councilors Jim Benson, Debbie Buckley, Mac McDevitt and Buz Reynolds present. Mayor Protem Bob McIlveen and Councilor Rick Cuny were absent. Also present were Town Manager Bill Efting, Town Attorney Burt Levin, Assistant Town Manager Larry Brooks, Town Clerk Kris Nash, Community Development Director Mike Matzko, Town Planner Karen Griffith, Town Planner George Harrison; Public Works Superintendent Bob Reed, Transportation Director Harry Taylor, Executive Assistant Jacquie Halburnt, Town Engineer Norm Wood, Marketing Specialist Michelle Frongillo, Finance Director Scott Wright, Fire Inspector Shawn Branaugh as well as members of the press and public. Appeal of Planning & Zoning Commission Special Review Use Permit for Child Day Care Facility, 680 W. Beaver Creek Blvd. Mayor Yoder stated this is a public hearing. Mr. Robert Sperberg, owner of Sperberg & Associates of Avon, stated that he is representing the neighbors of Ms. Dawn Melendez to whom the special review use'permit was granted to operate a daycare center. He represents John Forehan of 0660 Beaver - Creek Blvd., Gerald and Lindy Gold of 0660 Beaver Creek Blvd., Don and Kate Doyle at 0680 Beaver Creek Blvd., and Ray and Kim Winsor of 0700 Beaver Creek Blvd. Mr. Sperberg stated they realize the need for daycare in the area, but contest the granting of the special review use permit for the daycare center. The center is unlicensed with the State of Colorado and does not and can not conform to the rules imposed by the State and by the Avon zoning ordinance. They are concerned for the safety of the children and for the safety of the homeowners. They are asking that the Town Council reverse the decision of the Planning & Zoning Commission (P&Z) and deny the permit. Mr. Sperberg addressed the legal aspects to be considered in this situation. The Town of Avon code regarding home occupation states a home occupation cannot produce noise audible outside of the dwelling. It states that a State of Colorado license is required to operate a child daycare facility. Also, a home occupation must not alter the exterior of the property or effect the residential character of the neighborhood. Mr. Sperberg stated the Department of Human Services Code of Colorado Regulations regarding home daycare facilities states arrangements must be made for a substitute be available of at least 18 -years old and capable to provide care and supervision of children in handling emergencies. They require an outdoor play area be available and that area must be enclosed by a fence or contain a natural barrier at least 4 feet high if there are children at the facility between 12 months and 5 years old. The rules of the P&Z for approval of fences in the area say that fences are discouraged except for decorative purposes. Mr. Sperberg stated that the Benchmark at Beaver Creek Declarations control this neighborhood. It restricts the use of properties in all of the Benchmark Subdivision. It states that no fence, wall or similar barrier shall be constructed on any lot except such functional or decorative walls as may be approved by the planning council of the subdivision, which council has since been abandoned. Mr. Sperberg stated the declaration or party wall agreement of that unit states the consent of the other owner is required before either owner can put any improvement on the common area. If a fence were to be put up, the consent of the other owner would be required. The party wall agreement is divided into A, B, and C, with C being the area around the building. Mr. Sperberg pointed out the criteria to be used when granting a special review use permit as defined in the Town code. That criteria is 1) whether the proposed use complies with all requirements imposed by the zoning code; 2) whether the proposed use is in conformance with the Town comprehensive plan; 3) whether the proposed use is compatible with adjacent uses. Mr. Sperberg stated that on this property its only zoning under which a daycare center could be occupied would be a home occupation. This location is in direct conflict with the requirements of a daycare center by the State because there must be an outside play area. If the kids are going to be outside, they will be noisy which the home occupation must not produce noise outside the dwelling unit. A license is required by the State. Ms. Melendez is licensed at a facility in East Vail; she is not licensed in Avon. State licenses are issued to both the person and the place. The exterior of the property will be altered because a fence will need to be added. A home occupation does not allow employees to work on the property. The State requires a substitute is available, they must be a paid employee and meet the State requirements. In reality, a daycare is not a home occupation given the definition that exists in the Town ordinance. Mr. Sperberg stated there is a liability issue for the adjacent neighbors. If a child runs onto the neighboring property and injures himself, there will be a lawsuit against that neighbor. Mr. Sperberg stated if Ms. Melendez were able to pass the inspection by the State they wouldn't have a problem. To get around the barrier and liability issues is something the Council must take into consideration because they are not just responsible to the homeowner with children, but also the homeowners in the vicinity that may face liability problems. There must be some protection for adjacent landowners. He does not feel this property can be brought into compliance. Mr. Sperberg summarized that the P&Z did not follow the criteria that are required of them in granting the special use permit. They did not look at all of the consequences. For that reason he feels the Council must reverse the decision and deny the application at this location. He would like Council to encourage Ms. Melendez to find a place that meets the criteria established by the State and then get her in there. The criteria cannot reasonably be met in this space. The Town could change its ordinances to meet the criteria but then it would not address the rights of a private owner. This is not an issue of NIMBY, (not in my back yard), this a safety issue. He does not feel the Council can uphold a special review use permit at this location. Councilor Reynolds asked if anyone came to the P&Z meeting representing Mr. Sperberg's clients. Mr. Sperberg stated there were some letters, sent and he thought there were some people there. He was not at the meeting. He was not consulted on the issue until after that meeting. Mr. Andrew Cuomo, representing Ms. Dawn Melendez (the tenant) and also Mr. Dick Mahler (the owner of the property), stated they have executed a two year lease on the property. Mr. Cuomo stated that Ms. Melendez's license was at a facility in East Vail, which she operated for twelve years. There were no safety problems, no problems with the State. He stated that Ms. Melendez has applied for the new license at the new location. She has called them numerous times, but they have failed to come inspect the property. He feels it is unfair to say someone is unlicensed because the license agency does not have the time, personnel or the care to come inspect the property. That is a governmental problem, not Ms. Melendez's problem nor a problem that should be addressed here. 2 • i Mr. Cuomo assumes the big safety issue that Mr. Sperberg kept referring to is the fence. There is a partial fence. Mr. Mahler is more than happy to add a fence that meets the State requirements and the Town's requirement. Tell us what needs to be done and we will do it. If safety is the concern, then he assumes that the Doyle's won't have a problem with the fence being put up. He stated when the Doyle's have been approached about putting up a fence for safety, their response was that they don't want a fence. Now he does not know if it is a safety issue or a personal issue. Mr. Cuomo stated regarding lawsuits, Ms. Melendez's clients would sign a waiver holding the homeowners harmless if their child was injured by accident. Mr. Cuomo stated the home borders Nottingham Park. What stops children from leaving the parking and going into private residences and being injured, what about that liability? He does not feel the issue is safety. Mr. Cuomo stated it is not the daycare kids playing in the front yard. It is Ms. Melendez's own grown children. If the children are outside it is maybe for an hour in the morning and an hour in the afternoon. They spend a lot of time inside, they are not outside for eight hours; maybe an hour or two. Mr. Cuomo stated if this area is not a good place for home daycare, what is? It is next to the park, the Town built a recreation center, and there is an elementary school right down the street. If this is not a safe place for kids, why did we put all this stuff here? He feels the P&Z were right in granting the permit. It is a need, a necessity, something the Town of Avon itself listed in its code, which encourages the development of neighborhood and community based daycare facilities. If this isn't the right location, then that policy is useless. Mr. Cuomo asks that the Council uphold the decision and tell him what needs to be done to get design review approval and he will get a fence up to make sure the house is safe for the children. Councilor Reynolds asked Mr. Cuomo how he addresses the party wall agreement that states a fence cannot be put up without the neighbor's approval. Mr. Cuomo stated it gets back to safety and complying, and if that's the issue we are willing to do what needs to be done. If that's the neighbor's issue we should not have a problem. If they are not willing to allow for a fence, then we could apply to have the lot zoned as A and B and not A, B, and C. Councilor Reynolds thought that the party wall agreement stated that the business had to be approved by the neighbor. Mr. Cuomo disagreed stating that only the fence would need to be approved by the neighbor. Councilor Reynolds asked Town Attorney Levin to clarify that issue. Ms. Anne Fehlner, vice-chair of the Planning & Zoning Commission, stated that they were not given the same information at the P&Z meeting as they are getting at the meeting tonight. Ms. Fehlner stated the criteria they consider for a special review use permit are 1) conformance with zoning regulations; 2) conformance with the Town of Avon Comprehensive Plan; 3) the proposed use is compatible with adjacent uses. Regarding the fencing, the P&Z were not aware that was a State requirement for licensing. Our regulations state that we discourage fencing; however, we do not eliminate it for the fact that there will be certain opportunities in which the Town will want to allow the use of a fence. The P&Z reviews on a project by project basis. Just because we allow a fence here does not mean that we will allow it everywhere. Ms. Fehlner stated that she is a property owner at 816 W. Beaver Creek Blvd., adjacent neighbor to the daycare facility. She is bothered by Mr. Sperberg's statement that one of their concerns is the liability of children injuring themselves on adjacent property. She does not feel that the liability is going to increase with six more supervised children in the area because there are many more unsupervised children in the park who run onto the adjacent properties. 3 • Mr. Kurt Davis stated he was a neighbor of the Melendez's when they were running the daycare in East Vail. He stated they were a far superior tenant to a tenant who would have parties all night long. He never found the noise factor a problem. His children were in her daycare and were never injured. Ms. Melendez ran a very clean, very well run operation. He never saw anything negative from a safety standpoint. He stated Ms. Melendez is an ideal tenant and ideal citizen. Ms. Theresa Smith stated Ms. Melendez watched both her children as infants and toddlers. Most of the children Ms. Melendez watches are under 3 and rarely outside. Her daycare is very much a home occupation and full time job. If Ms. Melendez is sick, we don't take our kids to daycare that day. She does not have employees coming in requiring more parking or use of the property. She does not see how the noise could be a factor. Ms. Melendez keeps an immaculate house. The children are very well supervised. She finds it very sad that a neighbor could have such a problem with such a good tenant. Ms. Donna Caynoski stated Ms. Melendez is far more clean and organized than any daycare around. We should be very proud as a community that we have her running such a facility. She wonders what the problem is that the neighbors have. Ms. Melendez is a very good citizen along with the rest of her family. We should support them, not hassle them. Mr. Drew Ekstrom stated his two-year-old daughter is relatively new to Dawn's Day Care and Ms. Melendez came highly recommended. His daughter is very excited to go to daycare the two days a week that she goes. Ms. Heidi Haniman-Skarajunsky stated Ms. Melendez has a twelve year unblemished daycare record. She has been going through the process to get the home license. She stated the neighbors should be negotiating before things end up in a court-like proceeding. Ms. Haniman-Skarajunsky stated she would be happy to sign a waiver for any neighbor. Lets talk it out so we can come up with a resolve. Mr. Dan Doyle, owner of the adjacent unit in the duplex and opposition of the daycare, stated Mr. and Mrs. Melendez do seem to be very nice people and he does appreciate what they are doing for the community. No one has ever talked to him about this. He stated it would be nice if someone would have come to him and ask if it was all right with him to do this here. He has not heard anything from Mr. Mahler, the owner of the unit that the Melendez's are renting. The organization they are running seems to be very nice, very quiet, but it would be nice if someone would have come and talk to him. Ms. Kate Doyle stated the reasons why the neighbors were not at the previous meeting. She stated Ms. Melendez did come and introduce herself to Ms. Doyle because she was apologizing for her cat setting off her sensor light and crying all night. She never introduced herself as a daycare operator. Ms. Doyle has never been approached about putting up a fence. Mr. Sperberg stated that the Declaration states that any common improvement or repairs required or desired shall not be commenced to one party subject to these covenants without the prior express written agreement of the other parties subject to hereby, except for emergency work. Councilor Reynolds confirmed that was referring to the property but not the business. Mr. Sperberg stated that is correct, it is not approving the business but approving the fence or any other improvement. Mr. Sperberg stated we have to concentrate on the issues here. If the Town Council does approve this and says to put up a fence and then the tenant moves in a year, does the fence stay or do they have to remove it? He also asked how easy it would be for someone to circumvent the rules if the Council establishes them. 4 0 11. 0 Town Attorney Levin advised the Council that their options are to confirm, modify or reverse the decision of the P&Z. Mr. Levin stated that in his view, the licensing authority of the Council is not the same role as the State. If Council grants the application and turns down the appeal, Council is not stepping in the shoes of the State, Council is not vouching for the facility insofar as whether it is licensed or should be licensed. Council is not assuming any responsibility relating to liability or regulation of the facility. - Council is simply being asked by the applicant whether this parcel of land in the town is suitable for this type of use. If the applicant chooses to operate without a license, that is a risk she is taking. It is not the role of the Council to enforce the licensure requirements of the State, nor does it state that in the code. Mr. Levin stated the liability issue should not be taken into consideration. Mayor Yoder asked if the approval for this use stays with the house or just with the applicant. Town Planner Griffith stated it stays with the use but a condition could be put on that it is only for this particular operator. The code does state that the new operator must notify the Town that they are the new operators. Mayor Yoder asked if they need approval from P&Z for someone else to do it. Ms. Griffith stated no, but a condition could be put on that it is only for this operator. Councilor Reynolds stated this sounds more like a court issue. He stated P&Z did everything per their rules and regulations. He does not see where the Council should be overturning what the P&Z had in front of them. Mr. Levin stated the Council has the authority to overrule the P&Z, or Council could turn it back to P&Z. Council can base it on the evidence before them today though there is apparently new evidence today that was not before the P&Z. Mr. Levin stated the Council could use the information they have today even though the P&Z did not have the benefit of that information. Councilor'Reynolds asked if the licensing and the running of the business was the business of the Town or the State? - Mr. Levin stated it is the State's business to regulate the daycare center and make sure that she is complying with the State's regulations. We are not in the business of regulating how she runs the daycare center. We are just in the position to decide if this area is suitable for that use. Mayor Yoder confirmed that Mr. Levin is in disagreement with Mr. Sperberg on that issue. Mr. Levin stated that is correct. Councilor Buckley asked the applicant how long it takes to get the license for the premises. Ms. Melendez stated she has called the State numerous times. She has been trying since December. She already has her license, the State just needs to come and inspect her home. Mayor Yoder closed the public hearing, and asked for discussion from the Council. Councilor Benson stated that he felt Mr. Sperberg's interpretation of the noise ordinance was that one couldn't even talk outside. He was very impressed at how well behaved the children attending the meeting-,were tonight. Mayor Yoder confirmed that Council could either uphold the P&Z approval, overturn the approval, table the appeal for up to 30 days, remand it back to P&Z, or modify it. Mr. Levin stated that is correct: Councilor Buckley stated she had concern for upholding an unlicensed daycare. But if Ms. Melendez is making every effort to get a license for the premises, she would like to uphold it conditionally upon getting the license. 5 • ' Councilor McDevitt stated the Doyle's and Melendez's need to get together and talk about the whole issue, they could probably settle it pretty quickly. It is up to us to make a decision. Councilor Reynolds stated he would like to see the approval go for 4 months and then reapply back to P&Z. The approval stays with this operator only., The licensing is between the State and the applicant and he would like to keep out of that issue. Councilor Reynolds stated he is not worried about the noise factor, he is concerned about the compatibility of the neighboring properties. Councilor Reynolds motioned approval of a 4 month trial period and that this permit stay with this applicant only. There was no second to the motion. Councilor Benson motioned to uphold the P&Z decision and make it conditional upon the license staying with Ms. Melendez only and that she does get the State approval. There was no second to the motion. Councilor Buckley motioned to uphold the P&Z decision and make it conditional that she get her license within one year and the license only stays with her. Councilor Benson seconded the motion. There being no further discussion, Mayor Yoder asked for a roll call. The motion passed with Councilor Reynolds voting against the motion. Ordinances: SECOND READING OF ORDINANCE NO. 99-05, SERIES OF 1999, An Ordinance of the Town of Avon, Colorado, Adding Section 17.24.020(D) to Title 17 of the Avon Municipal Code to Establish a Payment in Lieu of Off-Street Parking Program Mayor Yoder stated this is a public hearing. Town Attorney Levin stated this ordinance is designed to create a payment in lieu of parking program so the Town can collect fees when developers are being excused from the off street parking requirement. There being no input from the public, Mayor Yoder closed the public hearing. Councilor Benson motioned approval of Ordinance No. 99-05, Series of 1999 on second reading. Councilor Buckley seconded the motion. Mayor Yoder asked for a roll call. The motion carried unanimously. Ordinances: SECOND READING OF ORDINANCE NO. 99-06, SERIES OF 1999, An Ordinance Authorizing Execution of a Certain Governmental Lease-Purchase Master Agreement Mayor Yoder stated this is a public hearing. Finance Director Wright stated this ordinance authorizes the execution of a Master Lease Agreement in the amount of $294,320 at an 4.95% interest rate. This is to finance certain 6 0 0 equipment that has been budgeted for purchase during 1999. There being no input from the public, Mayor Yoder closed the public hearing. Councilor Reynolds motioned approval of Ordinance No. 99-06, Series of 1999 on seconded reading. Councilor McDevitt seconded the motion. Mayor Yoder asked for a roll call. The motion carried unanimously. Ordinances: SECOND READING OF ORDINANCE NO. 99-07, SERIES OF 1999, An Ordinance Approving an Amendment of the Wildridge Planned Unit Development (PUD) for Lots 13, 14, & 15, Block 4, Wildridge Subdivision, Town of Avon, Eagle County, Colorado Mayor Yoder stated this is a public hearing. Planner George Harrison stated this is an amendment to the Wildridge PUD to incorporate lot 14 into lots 13 and 15. 'It also allows for a retaining wall in the front yard setback of lot 13. Councilor Benson asked what happens to the density. Mr. Harrison stated the assigned density on lot 14 is vacated and lot 13 and 15 remain as duplex lots. There being no input from the public, Mayor Yoder closed the public hearing. Councilor Benson motioned approval of Ordinance No. 99-07, Series of 1999 on second reading. Councilor Buckley seconded the motion. Mayor Yoder asked for a roll call. The motion carried unanimously. Town Manager Report: Town Manager Efting stated Assistant Town Manager Brooks would be in charge Wednesday through Friday as Mr. Efting will be out of town. He could be reached by cell phone. Mayors Report: Mayor Yoder read a Proclamation for Days of Remembrance for the record. Consent Agenda: a.) Approval of March 23, 1999 Council Meeting Minutes b.) Resolution No. 99-12, Series of 1999, A Resolution Approving the Final Plat, Fourth Supplement to Condominium Map for Canyon Run (Building G), Lot 4, Nottingham Station, PUD Amendment No. 3, Town of Avon, Eagle County, Colorado c.) Resolution No. 99-13, Series of 1999, A Resolution Approving the Final Plat, A Resubdivision of Lots 13, 14, and 15, Block 4, Wildridge, Town of Avon, Eagle County, Colorado d.) Approval of Amended and Restated Master Service Contract 7 • r e.) Approval of Avon Village Tap Fee Agreement f.) Contract for Park Equipment Storage Building g.) Contract for Temporary Sidewalks h.) Contract for Western Enterprise for Fireworks July 4, 1999 i.) Property Agreements Tract Q and R j.) Property Agreements Buck Creek Plaza Condominiums k.) Award of Computer Bid 1.) West Lake Creek Association Fire Agreement m.) Financial Matters, Councilor Benson motioned approval of the Consent Agenda with the following changes: removal of item f and approve the memo dated April 13, 1999 from Norm Wood; modify item g, section a of the agreement to $17,017; and remove item j and item k. Councilor Buckley seconded the motion. The motion carried unanimously. There being no further business to come before the Council, Councilor Benson motioned to adjourn the meeting. Councilor McDevitt seconded the motion. The motion carried unanimously. The meeting adjourned at 7:15 PM. Y SUBMITTED: Town APPROVED: Jim Benson Debbie Buckley Rick Cuny Mac McDevitt Bob McIlveen Buz Reynolds Judy Yoder 8